On what date does an individual (other than a U.S. citizen) begin or end @USTaxResidency

This is an interesting and important question. This question is always important for determining how the Sec. 877A “Exit Tax” applies to “permanent residents” AKA “Green Card Holders” who with to abandon their permanent residence. There are many other many other reasons why this matters. U.S. tax residency (which is an example of “deemed tax residency“) can be a complicated thing. With the exception of U.S. citizens, U.S. tax residency is usually a function of some form of “physical presence”.

U.S. tax residency can trigger:

– income tax payable
reporting requirements with respect to non-U.S. assets and more (dual tax residents may be able to use a “tax treaty tie-breaker” to opt out of U.S. tax residency)

Remember that “residence” for purposes of taxation can be different from residence for the purposes of immigration. As the Topsnik case makes clear, it is entirely possible to NOT have the right to have lost the right to live in the United States, but still be subject to taxation as a U.S. resident.

Rather than reinvent the wheel, I am please to reproduce this post from Daniel Gray – a Toronto based CPA. Thanks to Daniel for allowing me to reproduce this post from his blog.

Explanation and Ten Examples of the Rules for Determining an Alien’s Period of Residency in the United States

February 9, 2018

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Daniel Gray CPA Toronto

An alien’s period of residency in the United States must have an official starting date and ending date. The rules for determining these dates are as follows.

Residency Starting Date under the Green Card Test

If you meet the green card test at any time during a calendar year, but do not meet the substantial presence test for that year, your residency starting date is the first day in the calendar year on which you are present in the United States as a lawful permanent resident (the date on which the United States Citizenship and Immigration Services (USCIS) has officially approved your petition to become an Immigrant).

If you receive your green card abroad, then the residency starting date is your first day of physical presence in the United States after you receive your green card. You may elect to be treated as a resident alien for the entire calendar year if you were a lawful permanent resident of the United States at any time during the calendar year.

If you were a U.S. resident during any part of the preceding calendar year and you are a U.S. resident for any part of the current year, you will be considered a U.S. resident at the beginning of the current year.

If you meet both the green card test and the substantial presence test in the same year, your residency starting date is the earlier of:

The first day you are present in the United States during the year you pass the substantial presence test, or

The first day you are present in the U.S. as a lawful permanent resident (green card holder).

CAUTION: If you were a resident alien for any part of the current year, and you were a resident alien during any part of the following year, you will be taxed as a resident alien through the end of the current year. This applies whether you have a closer connection to a foreign country during the current year, whether you are a U.S. resident under the substantial presence test, or whether you are a U.S. resident under the green card test.

Residency Starting Date under the Substantial Presence Test

If you meet the substantial presence test for a calendar year, your residency starting date is generally the first day you are present in the United States during that calendar year.

If you were a U.S. resident during any part of the preceding calendar year and you are a U.S. resident for any part of the current year, you will be considered a U.S. resident at the beginning of the current year.

If you meet both the green card test and the substantial presence test in the same year, your residency starting date is the earlier of:

The first day you are present in the United States during the year you pass the substantial presence test, or

The first day you are present in the U.S. as a lawful permanent resident (green card holder).

Note: Because a person who is an “exempt individual” for purposes of the substantial presence test is not considered to be “present in the United States,” such an individual’s residency starting date under the substantial presence test may be later than when the “exempt individual” arrived in the United States. For an example of this situation, see Example 2 in Alien Residency Examples.

CAUTION: If you were a resident alien for any part of the current year, and you were a resident alien during any part of the following year, you will be taxed as a resident alien through the end of the current year. This applies whether you have a closer connection to a foreign country during the current year, whether you are a U.S. resident under the substantial presence test, or whether you are a U.S. resident under the green card test.

Residency Starting Date under the First-Year Choice

If you do not meet either the green card test or the substantial presence test for the current year (for example, 2018) or the prior year (2017), and you did not choose to be treated as a U.S. resident for part of the prior year (2017), but you meet the substantial presence test in the following year (2018), you can choose to be treated as a U.S. resident for part of the current year (2018). To make this first-year choice, you must:

Be present in the United States for at least 31 days in a row in the current year, and

Be present in the United States for at least 75% of the number of days beginning with the first day of the 31-day period and ending with the last day of the current year. (For purposes of this 75% requirement, you can treat up to 5 days of absence from the United States as days of presence in the United States.)

When counting the days of presence in (1) and (2) above, do not count the days you were in the United States under any of the days of presence in the United States exceptions to the substantial presence test.

If you make the first-year choice, your residency starting date for the current year is the first day of the earliest 31-day period (described in (1) above) that you use to qualify for the choice. You are then treated as a U.S. resident for the rest of the year.

If you are present for more than one 31-day period and you satisfy condition (2) above for each of those periods, your residency starting date is the first day of the first 31-day period. If you are present for more than one 31-day period but you satisfy condition (2) above only for a later 31-day period, your residency starting date is the first day of the later 31-day period.

Example 1. Juan DaSilva is a citizen of the Philippines. He came to the U.S. for the first time on November 1, 2015, and was here on 31 consecutive days (from November 1 through December 1, 2015). Juan returned to the Philippines on December 1 and came back to the United States on December 17, 2015. He stayed in the United States for the rest of the year. During 2016, Juan was a resident of the United States under the substantial presence test. Juan can make the first-year choice for 2015 because he was in the United States in 2015 for a period of 31 days in a row (November 1 through December 1) and for at least 75% of the days following (and including) the first day of his 31-day period (46 total days of presence in the United States divided by 61 days in the period from November 1 through December 31 equals 75.4%). If Juan makes the first-year choice, his residency starting date will be November 1, 2015.

You must attach a statement to Form 1040 to make the first-year choice for the current year. The statement must contain your name and address and specify the following.

That you are making the first-year choice for the current year.

That you were not a U.S. resident in the prior year.

That you are a U.S. resident under the substantial presence test in the following year.

The number of days of presence in the U.S. during the following year.

The date or dates of your 31-day period of presence and the period of continuous presence in the U.S. during the current year.

The date or dates of absence from the U.S. during the current year (that you are treating as days of presence under the first-year choice).

You cannot file Form 1040 or the statement until you meet the substantial presence test in the following year. If you have not met the test for the following year as of April 15 of that year, you can request an extension of time for filing your Form 1040 until a reasonable period after you have met that test. To request an extension to file until October 15 of the following year, use Form 4868, Application for Automatic Extension of Time to File U.S. Individual Income Tax Return.

Once you make the first-year choice, you may not revoke it without the approval of the Internal Revenue Service.

Note: If you do not follow the procedures discussed here for making the first-year choice, you will be treated as a nonresident alien for the entire tax year. However, this does not apply if you can show by clear and convincing evidence that you took reasonable actions to become aware of the filing procedures and significant steps to comply with the procedures.

Residency Starting Date under the Terms of an Income Tax Treaty

In general, your residency starting date under the terms of an income tax treaty is the date on which you first satisfy the definition of a resident under the terms of the treaty. Generally, each treaty looks first to the domestic tax law of each country to define residency for that country. If dual residency in two countries results, then most treaties contain “tie-breaker” rules to determine a single country of residency.

Residency Ending Date under the Green Card Test

Your last day of presence in the United States on which you are considered to be a lawful permanent resident of the United States is the residency ending date under the immigration laws of the United States.

However, you are still considered to be a resident alien of the United States for U.S. income tax purposes, until you: (1) voluntarily turn in your green card to USCIS and renounce your U.S. immigrant status; (2) have your immigrant status administratively revoked by USCIS; or (3) have your immigrant status judicially revoked by a United States federal court.

CAUTION! A lawful permanent resident (green card holder) for at least 8 of the last 15 years who ceases to be a U.S. lawful permanent resident may be subject to special expatriation reporting requirements and tax provisions.

Residency Ending Date under the Substantial Presence Test

In general, if you meet the substantial presence test, your residency ending date is your last day of presence in the United States followed by a period during which:

You are not present in the United States,

You have a closer connection to a foreign country than to the United States, and

You are not a resident of the United States during the calendar year following that of your last day of presence in the United States.

Under the general rule, the residency ending date is December 31 of the calendar year in which you left the United States.

However, your residency ending date is the last day during the calendar year that you are physically present in the United States if, for the remainder of the calendar year:

your tax home is in a foreign country (cf. Rev. Rul. 93-86); and

you maintain a closer connection to that foreign country than to the United States (cf. Treas. Reg. § 301.7701(b)-2(d)).

Note: An “exempt individual” is not considered to be “present in the United States” during the exempt individual period for purposes of determining the residency ending date under the substantial presence test. This rule may result in situations in which a person who was once a resident under the substantial presence test and who later becomes an “exempt individual,” can become a nonresident alien once more without ever having left the United States. For an example of this situation, see Example 6 in Alien Residency Examples.

Statement Required to Establish Your Residency Termination Date

You must file a statement with the IRS to establish your residency termination date. You must sign and date this statement and include a declaration made under penalties of perjury.

The statement must be attached to your income tax return. If you are not required to file an income tax return, send the statement to the Department of the Treasury, Internal Revenue Service, Austin, Texas 73301-0215, on or before the due date for filing your income tax return.

The statement must contain the following information (as applicable):

Your name, address, U.S. taxpayer identification number (if any), and U.S. visa type and number (if any).

Your passport number and the name of the country that issued your passport.

The tax year for which the statement applies.

The last day that you were present in the United States during the year.

Sufficient facts to establish you have maintained your tax home in and that you have a closer connection to a foreign country following your last day of presence in the United States during the year or following the abandonment or rescission of your status as a lawful permanent resident during the year.

The date that your status as a lawful permanent resident was abandoned or rescinded.

Sufficient facts (including copies of relevant documents) to establish that your status as a lawful permanent resident has been abandoned or rescinded.

If you can exclude days under the de minimis presence rule (refer to Publication 519), state the dates you are excluding and include sufficient facts to establish that you have maintained your tax home in, and that you have a closer connection to, a foreign country during the period you are excluding.

Note: If you do not file the required statement, you cannot claim that you have a closer connection to a foreign country or countries. This does not apply if you can show by clear and convincing evidence that you took reasonable actions to become aware of the requirements for filing the statement and significant steps to comply with those requirements.

The following are examples of the application of the tax residency rules to various situations involving nonresident alien visitors to the United States and aliens temporarily present in the United States as students, trainees, scholars, teachers, researchers, exchange visitors, and cultural exchange visitors.

Example 1

Wei Wu was a citizen and resident of the People’s Republic of China immediately prior to his entry into the United States. He is temporarily present in the United States as a graduate student at a university in Cleveland on an F-1 visa (student visa). He arrived in the United States on 08-15-2011. Assume that Wei Wu has not changed his immigration status since his arrival in the United States.

Date of entry into United States: 08-15-2011
Student F-1 visa. Exempt Individual for 5 calendar years (2011 through 2015).
Then, begin counting 183 days at this date: 01-01-2016.
Number of nonexempt days in United States during 2016: 366 days
Current year (2016) days in United States × 1 = 366 days
Prior year (2015) days in United States × 1/3 = 0 days
Second Prior year (2014) days in United States (0) × 1/6 = 0 days
Total = 366 days

Wei Wu passed the substantial presence test on 07-01-2016 (the 183rd day of 2016). Wei Wu’s residency starting date under I.R.C. § 7701(b) is 01-01-2016 (the first day he was present in United States during the calendar year in which he passed the substantial presence test).

Example 2

Wei Wu’s wife Li Chen arrived in the United States on the same day as Wei Wu on an F-2 visa (spouse or dependent of a student on an F-1 visa). However, on 6-15-2013 she changed nonimmigrant status from F-2 to a Temporary Protected Status pursuant to an official announcement of the U.S. Citizenship and Immigration Services (USCIS). She received an Employment Authorization Document (EAD) from USCIS and went to work for a United States employer, who then petitioned USCIS on her behalf to secure her a Green Card. On 09-15-2014, USCIS approved her status as a lawful permanent resident of the United States and later issued her a Green Card under the routine procedures of the USCIS. Determine Li Chen’s residency starting date.

Date of entry into United States: 08-15-2011
Date of change in status out of F-2: 06-15-2013
Exempt Individual from 08-15-2011 through 06-14-2013
Begin counting 183 days at this date: 06-15-2013
Number of nonexempt days in United States during 2013: 200 days
Current year (2013) days in United States (200) × 1 = 200 days
Prior year (2012) days in United States (0) × 1/3 = 0 days
Second Prior year (2011) days in United States (0) × 1/6 = 0 days
Total = 200 days

Li Chen passed the substantial presence test on: 12-14-2013 (the 183rd day after 06-14-2013). Li Chen’s residency starting date under I.R.C. 7701(b) is 06-15-2013 (the first day she was counted as being present in United States during the calendar year in which she passed the substantial presence test). An “exempt individual” is never counted as being physically present in the United States for the purposes of the substantial presence test. For tax purposes it does not matter that she later became a Lawful Permanent Resident on 09-15-2014 because she had already become a resident alien under the substantial presence test on 12-14-2013.

Example 3

Assuming the same facts as in (1) and (2) above. These are the federal income tax returns both taxpayers will file for 2015 and 2016.

2015:
Option #1: Wei Wu may file Form 1040NR or 1040NR-EZ as a nonresident alien, married filing separately. Li Chen may file Form 1040 or 1040A as a resident alien, married filing separately.

Option #2: Wei Wu and Li Chen may take advantage of the option allowed by I.R.C. 6013(g), Election to Treat Nonresident Alien Individual as Resident of the United States, to file a joint 1040 or 1040A for 2015 because Li Chen is a resident alien at the end of 2015. See Nonresident Alien Spouse Treated as a Resident Alien for more information on the election to treat a nonresident alien as a resident and file a joint return..

2016:
Wei Wu and Li Chen may file a joint 1040 or 1040A because both spouses are resident aliens for 2016, or each spouse may file Form 1040 or 1040A as married filing separately.

Example 4

Mr. Avatar Venkateschwaran was a citizen and resident of India just prior to his arrival in the United States. He is a research scholar in chemical engineering at a university in Chicago. He arrived in the United States on 08-29-2014 on a J-1 visa. It is assumed he has not changed to another immigration status.

Date of entry into United States: 08-29-2014
Research scholar J-1 visa. Exempt Individual 2 calendar years: 2014 and 2015.
Then, begin counting 183 days at this date: 01-01-2016
Number of nonexempt days in United States during 2016: 366 days
Current year (2016) days in United States × 1 = 366 days
Prior year (2015) days in United States (0) × 1/3 = 0 days
Second Prior year (2014) days in United States (0) × 1/6 = 0 days
Total = 366 days

Avatar passes the substantial presence test on: 07-01-2016 (the 183rd day of 2016). Avatar’s residency starting date under I.R.C. 7701(b) is 01-01-2016 (the first day he was present in United States during the calendar year in which he passed the substantial presence test).

These are the federal income tax returns Avatar will file for 2014, 2015, and 2016

2014:
Avatar will file Form 1040NR or 1040NR-EZ as a nonresident alien.

2015:
Avatar will file Form 1040NR or 1040NR-EZ as a nonresident alien.

2016:
Avatar will file Form 1040/1040A/1040EZ as a resident alien.

Example 5

Mr. Gerard de la Fontaine was a citizen and resident of France just prior to his arrival in the United States. He is an employee of a French corporation affiliated with a U.S. corporation. He arrived in the United States on 04-30-2014 on an L-1 visa to work for the affiliated U.S. corporation in Cleveland. He does not intend to leave the United States until 04-29-2017. Determine his residency starting date.

Date of entry into United States: 04-30-2014
Nonexempt individual.
Begin counting 183 days at this date: 04-30-2014 (date of arrival)
Number of nonexempt days in United States during 2014: 246 days
Current year (2014) days in United States (246) × 1 = 246 days
Prior year (2013) days in United States (0) × 1/3 = 0 days
Second Prior year (2012) days in United States (0) × 1/6 = 0 days
Total = 246 days

Gerard passed the substantial presence test on: 10-29-2014 (the 183rd day after 04-29-2014). Gerard’s residency starting date under I.R.C. § 7701(b) is 04-30-2014 (the first day he was present in United States during the calendar year in which he passed the substantial presence test).

federal income tax returns Gerard will file for 2014, 2015 and 2016

2014:
Gerard will file a dual-status tax return as a dual-status alien.

2015:
Gerard will file Form 1040/1040A/1040EZ as a resident alien.

2016:
Gerard will file Form 1040/1040A/1040EZ as a resident alien.

Example 6

Miss Rebeca de los Santos was a citizen and resident of Argentina immediately prior to her arrival in the United States. She arrived in the United States on 03-15-2014 as a tourist on a B-2 visa and remained continuously in the United States thereafter. Later in 2014 she enrolled as a student at a university in New York, and, as a result, changed nonimmigrant status to F-1 (student) on 11-15-2014. Determine her residency status for 2014, 2015, and 2016.

Analysis for 2014

Date of entry into United States: 03-15-2014
Nonexempt individual 03-15-2014 through 11-14-2014
Exempt Individual 11-15-2014 through 12-31-2018
(student on F-1 visa is “Exempt Individual” for 5 calendar years, 2014 through 2018)
Begin counting 183 days at this date: 03-15-2014
Stop counting days at this date: 11-14-2014

Number of nonexempt days in United States during 2014: 245 days
Number of exempt days in United States during 2014: 47 days
Current year (2014) days in United States (245) × 1 = 245 days
Prior year (2013) days in United States (0) × 1/3 = 0 days
Second Prior year (2012) days in United States (0) × 1/6 = 0 days
Total for 2014 = 245 days

Rebeca passed the substantial presence test on: 09-13-2014 (the 183rd day after 03-14-2014). Rebeca’s residency starting date under I.R.C. 7701(b) is 03-15-2014 (the first day she was present in the United States during the calendar year in which she passed the substantial presence test).

Under the general rule, the residency ending date under the substantial presence test is December 31st of the year in which Rebeca ceases to be present in the United States. However, an exception is allowed for a residency ending date that is earlier than December 31 in the alien’s last calendar year in the United States. Refer to Residency Starting and Ending Dates.

The exception would allow Rebeca’s residency ending date to be the last day during the calendar year that she ceases to be present in the United States if, for the remainder of the calendar year:

her tax home is in a foreign country (Rev. Rul. 93-86); and

she maintains a closer connection to that foreign country than to the United States (Treas. Reg. § 301.7701(b)-2(d)).

If she had qualified for the exception, Rebeca’s residency ending date under the exception to the general rule would have been 11-14-2014.

However, Rebeca does not qualify for the exception to the general rule for determining her residency ending date because, after 11-14-2014, she did not have a tax home in a foreign country and she did not maintain a closer connection to a foreign country than to the United States.

Since Rebecca does not qualify for the exception to the residency ending date general rule, her residency ending date remains: 12-31-2014.

Analysis for 2015

Date of entry into United States: 03-15-2014
Nonexempt individual: 03-15-2014 through 11-14-2014
Exempt individual: 11-15-2014 through 12-31-2018
(student on F-1 visa is “Exempt Individual” for 5 calendar years, 2014 through 2018)
Begin counting 183 days at this date: 03-15-2014
Stop counting days at this date: 11-14-2014

Number of nonexempt days in United States during 2015: 0 days
Number of exempt days in United States during 2015: 365 days
Current year (2015) days in United States (0) × 1 = 0 days
Prior year (2014) days in United States (245 nonexempt days) × 1/3 = 82 days
Second Prior year (2013) days in United States (0) × 1/6 = 0 days
Total for 2015 = 82 days

Rebeca does not pass the substantial presence test for 2015. Per the Analysis for 2014 above, Rebeca’s residency beginning date was 03-15-2014 and residency ending date, under the general rule, was 12-31-2014. Since the substantial presence test is applied on a year-to-year basis, Rebeca is a nonresident alien for calendar year 2015.

Analysis for 2016

Date of entry into United States: 03-15-2014
Nonexempt individual: 03-15-2014 through 11-14-2014
Exempt Individual: 11-15-2014 through 12-31-2018
(student on F-1 visa is “Exempt Individual” for 5 calendar years, 2014 through 2018)
Begin counting 183 days at this date: 03-15-2014
Stop counting days at this date: 11-14-2014

Number of nonexempt days in United States during 2016: 0 days
Number of exempt days in United States during 2016: 366 days
Current year (2016) days in United States (0) × 1 = 0 days
Prior year (2015) days in United States (0) × 1/3 = 0 days
Second Prior year (2014) days in United States (245) × 1/6 = 41 days
Total for 2016 = 41 days

Rebeca does not pass the substantial presence test for 2016.

federal income tax returns Rebeca will file for 2014, 2015 and 2016

2014:
Rebeca will file a dual-status tax return as a dual-status alien,

since she is a nonresident alien from 01-01-2014 through 03-14-2014 and a U.S. resident alien under the substantial presence test from 03-15-2014 through 12-31-2014.

2015:
Rebeca will file Form 1040NR or 1040NR-EZ as a nonresident alien.

2016:
Rebeca will file Form 1040NR or 1040NR-EZ as a nonresident alien.

Example 7

Miss Natalia Nabokova was a citizen and resident of Russia just prior to her arrival in the United States. She arrived in the United States on 08-25-2014 as a student on an F-1 visa. On 02-02-2015 she married Mr. Paul Oakland, a United States citizen. On 03-01-2015 she petitioned USCIS for a change in immigration status to that of lawful permanent resident based upon her marriage to Mr. Oakland. On 05-15-2016 USCIS approved her petition to become a lawful permanent resident of the United States, and issued her a green card later in the year under the routine procedures of the USCIS.

Analysis for 2014

Date of entry into United States: 08-25-2014
Exempt individual: 2014.
(student on F-1 visa is “Exempt Individual” for 5 calendar years, 2014 through 2018).
Number of nonexempt days in United States during 2014: 0 days
Number of exempt days in United States during 2014: 129 days (08-25-2014 through 12-31-2014)
Current year (2014) days in United States (0) × 1 = 0 days
Prior year (2013) days in United States (0) × 1/3 = 0 days
Second Prior year (2012) days in United States (0) × 1/6 = 0 days
Total for 2014 = 0 days

Natalia does not satisfy the substantial presence test in 2014.

Analysis for 2015

Date of entry into United States: 08-25-2014
Exempt individual: 2014 and 2015
(student on F-1 visa is “Exempt Individual” for 5 calendar years, 2014 through 2018)
Number of nonexempt days in United States during 2013: 0 days
Number of exempt days in United States during 2015: 365 days
Current year (2015) days in United States (0) × 1 = 0 days
Prior year (2014) days in United States (0) × 1/3 = 0 days
Second Prior year (2013) days in United States (0) × 1/6 = 0 days
Total for 2015 = 0 days

Natalia does not pass the substantial presence test for 2015 and Natalia does not pass the green card test for 2013. The filing of a petition with USCIS does not constitute a change of status under immigration law.

Analysis for 2016

Date of entry into United States: 08-25-2014
Exempt individual: 08-25-2014 through 05-14-2016.
Begin counting days of presence on: 05-15-2016.
Number of nonexempt days in United States during 2016: 231 days (05-15-2016 through 12-31-2016)
Number of exempt days in United States during 2016: 135 days (01-01-2016 through 05-14-2016)
Current year (2016) days in United States (231) × 1 = 231 days
Prior year (2015) days in United States (0) × 1/3 = 0 days
Second Prior year (2014) days in United States (0) × 1/6 = 0 days
Total for 2016 = 231 days

Natalia passes the substantial presence test on 11-13-2016 (the 183rd day after 05-14-2016). Natalia passes the Green Card test on 05-15-2016.

Since she was already in the United States when she became a lawful permanent resident (green card test), Natalia’s residency starting date under I.R.C. 7701(b) is 05-15-2016, per both the green card test (the date USCIS changed her status to lawful permanent resident) and the substantial presence test (the first day she was present in the United States during the calendar year in which she passed the substantial presence test). An “exempt individual” is never counted as being physically present in the United States for the purposes of the substantial presence test.

federal income tax returns Natalia will file for 2014, 2015 and 2016

2014:
Natalia will file Form 1040NR or 1040NR-EZ as a nonresident alien.

2015:
Option # 1. Natalia will file Form 1040NR or 1040NR-EZ as a nonresident alien, married filing separately.

Option # 2. Natalia will file a joint 1040 or joint 1040A with her United Sates citizen spouse, whom she married on 02-02-2015, making an election under I.R.C. § 6013(g), Election to Treat Nonresident Alien Individual as Resident of the United States.

2016:
Option # 1. Natalia will file as a dual-status alien

(Form 1040 with Form 1040NR attached as a schedule), married filing separately, as she became a lawful permanent resident on 05-15-2016.

Option # 2. Natalia will file a joint 1040 or 1040A with her United States citizen spouse, as she became a lawful permanent resident on 05-15-2016 and they were married as of 12-31-2016.

Example 8

Mr. Gerhard Schwarz was a citizen and resident of Germany just prior to his arrival in the United States. He arrived in the United States on 08-15-2015 as a professor of physics on an H-1b visa. He intends to remain in the United States for two academic years, and does not intend to change his immigration status during that period before returning home. Determine his residency starting date.

Analysis for 2015

Nonexempt individual (individuals in H-1b status are never Exempt Individuals)
Date of entry into United States: 08-15-2015
Begin counting 183 days at this date: 08-15-2015
Number of nonexempt days in United States during 2015: 139 days (08-15-2015 through 12-31-2015)
Current year (2015) days in United States (139) × 1 = 139 days
Prior year (2014) days in United States (0) × 1/3 = 0 days
Second Prior year (2013) days in United States (0) × 1/6 = 0 days
Total = 139 days

Gerhard does not pass the substantial presence test during 2015.

As another option, Gerhard could claim the First-Year Choice under IRC 7701(b)(2)(A) and qualify for a residency starting date of 08-15-2015. He did not meet either the green card test or the substantial presence test in the prior year (2014), he was present in the United States for at least 31 days in a row in 2015, was present in the United States for at least 75% of the number of days beginning with the first day of the 31-day period (08-15-2015) and ending with the last day of 2015, and met the substantial presence test in the subsequent year (2016). Refer to the Residency Starting Date under the First-Year Choice section in Residency Starting and Ending Dates.

Analysis for 2016

Nonexempt individual (individuals in H-1b status are never Exempt Individuals)
Date of entry into United States: 08-15-2015
Begin counting 183 days at this date: 08-15-2015
Number of nonexempt days in United States during 2016: 366 days
Current year (2016) days in United States (366) × 1 = 366 days
Prior year (2015) days in United States (139) × 1/3 = 47 days
Second Prior year (2014) days in United States (0) × 1/6 = 0 days
Total = 413 days

Gerhard passes the substantial presence test on 05-15-2016. From 2015, 47 days, plus 136 days from 2016 (01-01-2016 through 05-15-2016) = 183 days.

Gerhard’s residency starting date is 01-01-2014 (the first day he was present in United States during the calendar year in which he passed the substantial presence test).

federal income tax returns Gerhard will file for 2015 and 2016

2015:
Option #1. Gerhard will file Form 1040NR/1040NR-EZ as a nonresident alien.

Option #2. Gerhard will file a dual-status tax return as a dual-status alien, claiming the First-Year Choice under IRC 7701(b)(2)(A) and a residency starting date of 08-15-2015.

2016:
Gerhard will file Form 1040/1040A/1040EZ as a resident alien.

Example 9

Miss Soula Demetrios was a citizen and resident of Greece just prior to her arrival in the United States. She arrived in the United States on 8-15-2009 as a student on an F-1 visa. She remained in F-1 status until she graduated with a Master’s degree in June 2014. She left the United States on 06-30-2014 and returned home to Greece. On 08-01-2015 she returned to the United States as a researcher on a J-1 visa.

Analysis for 2015

Date of (second) entry into United States: 08-01-2015
Exempt individual: 08-15-2009 through 12-31-2013
(student on F-1 visa is “Exempt Individual” for 5 calendar years, 2009 through 2013)
Nonexempt individual: 01-01-2014 through 06-30-2014 and 08-01-2015 through 12-31-2015

Begin counting 183 days at this date: 08-01-2015. Because Soula is currently a J-1 non-student, then we will apply the 6-year “lookback rule” to her. Because she had already been an exempt individual as an F-1 student during 2 of the 6 years prior to 2015, then she cannot be an exempt individual during 2015, and she must start counting days of presence on the date of her arrival in the United States. During her prior visit as an F-1 student, applying the 5-year rule, she ceased to be an exempt individual on 12-31-2013.

Number of nonexempt days in United States during 2015: 153 days (08-01-2015 through 12-31-2015)
Current year (2015) days in United States (153) × 1 = 153 days
Prior year (2014) days in United States (181 for 01-01-2014 through 06-30-2014) × 1/3 = 60 days
Second Prior year (2013) days in United States (0) × 1/6 = 0 days
Total = 213 days

Soula passes the substantial presence test on 12-01-2015. From 2014, 60 days, plus 123 days from 2015 (08-01-2015 through 12-01-2015) = 183 days.

Soula’s residency start date is 08-01-2015. Soula had not been present in the United States long enough to establish residency during 2014, nor to qualify for the First-Year Choice under IRC 7701(b)(2)(A) – she was present in the United States for less than 75% of the days from 01-01-2014, when she was in the United States, to the last day of 2014. Thus, her residency must begin on 08-01-2015, the first day she is present in the United States during the year she passes the substantial presence test.

Analysis for 2016

Date of entry into United States: 08-01-2015
Exempt individual: 08-15-2009 through 12-31-2013
(student on F-1 visa is “Exempt Individual” for 5 calendar years, 2009 through 2013)
Nonexempt individual 01-01-2014 through 06-30-2014 and 08-01-2015 through 12-31-2015
Begin counting 183 days at this date: 08-01-2015
Number of nonexempt days in United States during 2016: 366 days
Current year (2016) days in United States (366) × 1 = 366 days
Prior year (2015) days in United States (153) × 1/3 = 51 days
Second Prior year (2014) days in United States (182) × 1/6 = 30 days
Total = 447 days

Soula passes the substantial presence test for 2016.

Since she was a resident alien on 12-31-2015, and has not left the United States, then her residency in the United States established in 2015 continues into 2016 with no residency ending date.

federal income tax returns Soula will file for 2015 and 2016

2015:
Soula is a dual-status alien and will file a dual-status income tax return.

2016:
Soula will file Form 1040/1040A/1040EZ as a resident alien.

Example 10

Miss Salome Rashid was a citizen and resident of Egypt just prior to her arrival in the United States. She arrived in the United States on 08-15-2013 as a researcher on a J-1 visa. Without leaving the United States, she became a student and changed to F-1 status on 08-10-2015.

Analysis for 2015

Date of entry into United States: 08-15-2013
Exempt Individual: 2013 and 2014
(researcher on J-1 visa is “Exempt Individual” for 2 calendar years with a 6-year “lookback rule”)
Nonexempt individual commencing: 01-01-2015
Begin counting 183 days at this date: 01-01-2015

Begin counting 183 days at this date: 01-01-2015. However, days as an Exempt Individual start again on 08-10-2015. When Salome becomes an F-1 student on 08-10-2015, we must begin applying the 5-year rule to her beginning on that date. After 08-09-2015 we will not apply the 6-year “lookback rule” to Salome because the 6-year “lookback rule” does not apply to students.

Since Salome has already been an exempt individual during 2013 and 2014, then her status as a student Exempt Individual can only continue through 2015, 2016, and 2017. As a student in F-1 status, Salome is an “Exempt Individual” for 5 calendar years, 2013 through 2017.

During 2015 her status as an exempt individual commences on 08-10-2015. Therefore, the number of nonexempt days in the United States during 2015 is 221 days.

Number of nonexempt days in United States during 2015: 221 days (01-01-2015 through 08-09-2015)
Current year (2015) days in United States (221) × 1 = 221 days
Prior year (2014) days in United States (0) × 1/3 = 0 days
Second Prior year (2013) days in United States (0) × 1/6 = 0 days
Total = 221 days

Salome passes the substantial presence test on 07-02-2015 (the 183rd day after 12-31-2012).

Salome’s residency start date is 01-01-2015 (the first day she is present in the United States during the year she passes the substantial presence test.)

Under the general rule, the residency ending date under the substantial presence test is December 31st of the year in which Salome ceases to be present in the United States. However, an exception is allowed for a residency ending date that is earlier than December 31 in the alien’s last calendar year in the United States. Refer to Residency Starting and Ending Dates.

The exception allows Salome’s residency ending date to be the last day during the calendar year that she ceases to be present in the United States if, for the remainder of the calendar year:

her tax home is in a foreign country (Rev. Rul. 93-86); and

she maintains a closer connection to that foreign country than to the United States (Treas. Reg. § 301.7701(b)-2(d)).

If she qualifies for the exception, Salome’s residency ending date under the exception to the general rule is 08-09-2015 (the date she ceases to be considered present in the United States, since she became an exempt individual on that date).

However, Salome does not qualify for the exception to the general rule for determining her residency ending date because, after 08-09-2015, she did not have a tax home in a foreign country and she did not maintain a closer connection to a foreign country than to the United States.

Since Salome does not qualify for the exception to the residency ending date general rule, her residency ending date remains: 12-31-2015.

Analysis for 2016

Date of entry into United States: 08-15-2013
Exempt Individual: 2013 Count 0 days of presence.
Exempt Individual: 2014 Count 0 days of presence.
Exempt Individual: 2015 Count 221 days of presence.
Exempt Individual: 2016 Count 0 days of presence.

Number of nonexempt days in United States during 2016: 0 days
Current year (2016) days in United States (0) × 1 = 0 days
Prior year (2015) days in United States (221) × 1/3 = 74 days
Second Prior year (2014) days in United States (0) × 1/6 = 0 days
Total = 74 days

Salome does not pass the substantial presence test for 2016.

Summary for Salome Rashid:

2013:
Nonresident Alien

2014:
Nonresident Alien

2015:
Resident Alien

2016:
Nonresident Alien

federal income tax returns Salome will file for 2013 through 2016

2013 and 2014:

Salome will file Form 1040NR/1040NR-EZ as a nonresident alien for each calendar year.

2015:
Salome will file Form 1040/1040A/1040EZ as a resident alien.

2016:
Salome will file Form 1040NR/1040NR-EZ as a nonresident alien.

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